Editors
are the ones who give the "go" or "no
go" on a whole story or any aspect of it. So they're the ones
who ultimately are responsible for what is published. (This is, in
part, why they generally get paid more than the reporters.)
You need
to be at least passingly familiar with all aspects of media law
-- or know where to quickly put your hands on the information
-- in order to help reporters get access to information, protect
their sources and more.
But there
are at least three areas of law that editors
should know cold: libel, privacy and copyright.
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Libel is
the biggest category of law limiting free speech. It probably also
is the area of law most likely to make journalists lie awake nights
worrying.
The
Editorial Eye is right: It's usually not the big stories that
get you. It's the little ones that you never gave a second thought
until too late.
"Libel
is injury to reputation. Words, pictures or cartoons that expose
a person to public hatred, shame, disgrace or ridicule, or induce
an ill opinion of a person, are libelous." (The
AP Libel Manual)
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For
someone to win a libel suit against your news organization,
all these things must be proved in court:
*
The statement was false.
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*
It was a statement
of fact (not opinion).
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* The
statement was published.
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| * The
person who is suing was identifiable in the statement. |
| * The
person suffered damage. |
| *The
news organization was at fault. |
News organizations have several defenses against libel claims:
*
The
statement cannot be proved false.
Provable
truth is the only complete and unconditional
defense against libel.
But
proving truth can be difficult. Providing that what
you published
was
the whole truth is even harder. |
* The
statute of limitations has expired.
The
time a plaintiff has to sue for libel varies
by state. I believe it is two years after publication
in Iowa, Illinois and Minnesota, but three years
in Wisconsin. |
* The
statement was privileged.
Public
officials acting in their official capacities have
absolute privilege to say anything.
Journalists
have qualified privilege to provide
a full and fair account of anything said during an official
proceeding.
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* The statement was an expression
of opinion rather than a statement of fact.
Editors
should be sure that opinion pieces are clearly labeled
and their
assertions supported.
This
is a tricky area, and I suspect online forms such as
blogs are going to make it even
trickier.
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* The person suing is either
a public official or a public figure.
If
so, the plaintiff has to prove the statement was made
with actual malice (you
knew it was false but published it anyway) or reckless
disregard for whether it was true or false.
If
the plaintiff is not
a public official or public figure, he or she only
needs to provide negligence -- you didn't do your job
appropriately
in checking out the information. |
The
Editorial Eye offers excellent tips to help editors guard
against libel in the stories they edit:
* Recognize
the danger zones.
Think
carefully about any negative statements about
a person in a story. These might include accusations
or even implications that the person committed
a crime (before being found guilty in court),
engaged in undesirable business practices, had
a loathsome
disease or was immoral.
Other
danger areas include making someone look ridiculous
or dredging up
irrelevant information from the person's past.
(Ah, but exactly
what is irrelevant ...?) |
* Watch
for juxtapositions, such as second references
within a story or the use of
photos that could create an unintended (and damaging)
impression.
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* Make
changes and write headlines carefully.
Be
sure not to change meanings in text or to create
misleading headlines -- or cutlines or teasers or
anything else that editors write.
Headlines
can be especially
damaging because so many more people read the headline
than read the story, and courts may consider headlines
separately from stories. |
* Check the sources.
If
a story includes a source who does not hold absolute
privilege and who
says something negative about someone else, you need
to triple-check for both credibility of that source
and confirmation from other sources.
Sources
can and do use journalists to "get at" an enemy
-- leaving you liable for their vendetta.
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* Check
for the response.
If
the story contains negative statements about a person
or group, every effort must be made
to give that person or group an opportunity to respond.
Your
best bet, if in fact the story has to run at all without
a response, is to detail what those opportunities
were -- not only out of fairness (important though
that is) but also to legally cover your backside. |
* Develop
a procedure for responding to someone who says (screams, usually) that he
or she was libeled.
Short
version: This is why your company's lawyer gets the really big
bucks. Call the lawyer pronto, and involve him or her
in whatever communications ensue
with the person claiming libel.
Prompt
and clear retractions or corrections do
not take away the libel -- but they
often take away the person's
anger
or at least assuage it, making him or her less likely
to sue. Even if you do wind up in court and lose, you
likely
will have to pay less in damages than without the correction.
In
particular, avoid two common mistakes that journalists
make in dealing with someone enraged by something
they published.
* Mistake
A: Trying to calm the person down by apologizing
for your error (aka admitting guilt).
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* Mistake
B: Getting mad yourself. Be calm and, especially,
unfailingly polite.
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Privacy is another issue that not infrequently lands journalists in court,
or
at least forces them to deal with threats of ending up in court.
It is relatively
difficult to win a libel case, mainly because of the standard of truth.
The bar is a lot lower for winning a privacy case,
where truth is irrelevant.
The basic
idea of privacy law, which is only about 100 years old and continues
to evolve, is that everyone
has a right to be left
alone. (Public
figures have fewer such rights, at least in a legal sense, but everyone
has them.)
Specifically,
privacy can be invaded in four ways that both reporters and editors
must know about:
* Intrusion
into a person's seclusion or solitude,
or into private affairs.
Examples
include forcing your way into a source's home or going through
personal papers to get
a story. |
* Public
disclosure of embarrassing private facts, such as revealing
a person's notorious past when it has no bearing on the present.
This
is a problem area for libel, too, but again, privacy invasion
is easier to prove in court. |
| * Publicity
that places a person in a false light, for instance
by creating a misleading impression. |
* Misappropriation
of a person's name or likeness for personal advantage.
This
one usually applies to celebrities or public figures. They have
trouble winning libel cases,
but invasion of privacy claims are, once again, easier. |
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Copyright law protects journalists, but it can also get them in trouble.
* Copyright
was established in the original U.S. Constitution, so it
predates the First Amendment.
Basically,
it gives authors the right to control the reproduction and
use of their creative
expressions.
That
is, the person who published the material owns it, and it cannot
be used by someone else without
payment. To do so would be plagiarism, which has been a professional
death trap for a whole slew of journalists recently. |
* Most
journalism is considered "work for hire."
That
is, although an individual wrote the story or took the photo,
once
it is published, the copyright is held by the company for which
that individual works.
For
instance, once Jayne's editorial columns are published in the
Daily Iowan, the DI -- not Jayne -- is the
copyright holder. (In
fact, Jayne
would need to get permission from the DI publisher to
sell her column to any other outlet.) |
* Historically,
the law has covered materials fixed in tangible form, such as on
a piece of paper.
But
the law has been extended to cover digital material, including
online stories. |
Journalists
have some (but not blanket) protection under "fair use" standards
of copyright law. Editors must make sure that any information that was
not originally gathered by the reporter is properly and fully attributed
in the story.
Should a suit for infringement of copyright go to trial,
the court will consider four factors related to a journalist's claim
of fair use:
* The
purpose and nature of the use, in particular whether it was intended
to generate personal (or company) profit.
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* The
nature of the copyrighted work, such as its length, whether
it is fact or fiction, the effort that went into creating it and
its
availability.
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* The
amount of the total work that was used. The more that
was copied, the weaker the fair use defense.
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* The
effect the use will have on the value or profit-making potential
of the original work.
This
generally is the most important factor. The issue often is whether
the copy will have the same
function
as the original and therefore compete with it, or even supplant
it, in the marketplace. |
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